Abstract
Positive and soft-law measures are alternatives/complements to negative harmonisation and this chapter analyses whether they are realistic or desirable. The study of positive harmonisation reveals the constitutional problems related to the division of powers between the Member States and the European Union; it reveals the divergences related to whether action should be taken at national or supranational level, and whether the legislative lacuna left by the deregulatory effect of the negative integration requires positive action. It is interesting to see whether positive harmonisation is in the first place possible and furthermore if it can bring more clarity and legal certainty. The necessity for co-ordinating Member States’ social systems and the fears that through positive action their powers would be diminished, also motivate Member States to engage in soft-law measures. The issue of the relevance of the use of soft-law measures and of is further tackled.
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Notes
- 1.
Koopmans 1986, 925–931.
- 2.
See Case 136/78 Auer [1970] ECR 437.
- 3.
See Palm et al. 2000, www.aim-mutual.org.
- 4.
In defining the concept of spill-over, Stephen George explains: “If states integrated one sector of their economies, technical pressures would push them to integrate other sectors,” George 1996.
- 5.
Education and Training 2010 “The success of the Lisbon strategy hinges on urgent reforms”—Joint interim report of the Council and the Commission on the implementation of the detailed work programme on the follow-up of the objectives of education and training systems in Europe [2004] OJ C 104/01.
- 6.
Declaration of the European Ministers of Vocational Education and Training, and the European Commission, convened in Copenhagen on 29 and 30 November 2002, on enhanced European cooperation in vocational education and training “The Copenhagen Declaration.”
- 7.
Education and Training 2010.
- 8.
The internal market and health services, Report of the High level Committee on Health, 17.12.2001, European Commission Health and Consumer Protection Directorate General, Health and Consumer Protection Directorate General, Directorate G-Public Health, at http://ec.europa.eu/health/ph_overview/Documents/key06_en.pdf.
- 9.
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, [2006] OJ L 376/36.
- 10.
See Proposal for a Directive of the European Parliament and of the Council on the application of patients' rights in cross-border healthcare, COM(2008) 414 final.
- 11.
Lindberg and Scheingold 1970, 6.
- 12.
Ibid.
- 13.
Ibid., 6–7.
- 14.
- 15.
Lindberg and Scheingold 1970.
- 16.
- 17.
Lindberg and Scheingold 1970.
- 18.
Ibid., 8.
- 19.
Craig 1999, p. 6.
- 20.
Featherstone 1994, 154–155.
- 21.
Wallace 1993, 293.
- 22.
George 1996, 37.
- 23.
Lindberg and Scheingold 1970, 22.
- 24.
Ibid., 32.
- 25.
George 1996, 39.
- 26.
He distinguishes between three “spill-over’ concepts: functional ‘spill-over’—“it denotes the idea that there is an inherent economic-technical linkage or interdependence between issue areas which give rise to pressures to integrate other sectors as well”; cultivated ‘spill-over’—it denotes political pressures in favour of further integration, “the central institutions within the Community have an independent role in deliberately creating, cultivating or over-stating linkages between different sectors”; pluralistic ‘spill-over’—“integration is one sector brings about political pressures from various interest groups and elites, governmental or non-governmental, for further integration.”
- 27.
Beukel 1994, 33–54.
- 28.
Ibid., 44.
- 29.
Pertek 1992.
- 30.
- 31.
Mossialos and Mossialos and McKee 2002, 49.
- 32.
Craig 1999, 10.
- 33.
Moravcsik 1993, 485.
- 34.
Flynn 1998, 67.
- 35.
This principle of attribution of powers exists since the beginning of the Community: Article 4 EEC: “Each institution shall act within the limits of powers conferred upon it by this Treaty”; now Article 5(2) TEC “The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.”
- 36.
De Búrca 1998. De Búrca considers that the Court “is an institutional actor with a considerable degree of autonomy and normative influence.”
- 37.
Article 2 Treaty of Maastricht, Treaty on European Union, [1992] OJ C 191.
- 38.
Article 126 EEC.
- 39.
Article 127 EEC.
- 40.
Article 129 EEC.
- 41.
- 42.
Lenaerts 1994, 7–41.
- 43.
Jo Shaw 1999 expresses a very trenchant position: “The Member States could hardly have written a more trenchant defense of their national sovereignty in this field without an explicit refutation of any Community competence to act at all.”
- 44.
Article 126(4) EEC, Article 127 (4) EEC, Article 128(4) EEC.
- 45.
Now Article 165 TFEU.
- 46.
A more detailed explanation will be provided in the next section.
- 47.
Article 126(4) and Article 127(4) EEC.
- 48.
Article 129(4) EEC.
- 49.
Article 3(o) which stipulates that the Community will contribute to the attainment of a high level of health protection, Article 3(s) which provides that the Community shall contribute to the strengthening of consumer protection, Articles 30 and 34 that prohibit quantitative restrictions to trade, respectively import and export, Article 36 which contains justifications to trade obstacles and restrictions to trade are allowed on grounds of the protection of health and life of humans, animals or plants; Article 43 referring to agriculture, Articles 48–51 referring to free movement of workers; Articles 52–58 referring to the right to establishment; Articles-59–66 referring to free movement of services; Article 75(1) referring to the need to introduce measures to improve transport safety; Articles 100–102 referring to the approximation of laws related to the single market; Article 118 referring to prevention of occupational accidents and diseases and occupational hygiene; Article 129(a) referring to consumer protection; Article 130 (f)–130(q) referring to research, Article 130(r) referring to environment; Article 117–125 referring to social provisions and the setting of a Social Fund; Article 130(a)–130(e) referring to economic and social cohesion; the Protocol on social policy; and the Agreement on social policy concluded between the Member States with the exemption of the United Kingdom Article 130(u) referring to fostering economic and social development of the developing countries.
- 50.
- 51.
Hervey 2002a.
- 52.
Ibid.
- 53.
Von Bogdandy and Bast 2002, 227.
- 54.
De Búrca and De Witte 2002, 214.
- 55.
Chapter 2, Title III (Social Policy) Treaty of Rome.
- 56.
Council Decision 63/266/EEC laying down general principles for implementing a common vocational training policy [1963] OJ L63/1338.
- 57.
Ibid.
- 58.
Ibid.
- 59.
See McMahon 1995.
- 60.
Resolution of the Ministers of Education, meeting within the Council, of 6 June 1974 on cooperation in the field of education, [1974] OJ C98/2.
- 61.
Ibid.
- 62.
Ibid.
- 63.
Resolution of the Council and of the Ministers of Education, meeting within the Council, of 9 February 1976 comprising an action programme in the field of education, [1976] OJ C 38/1.
- 64.
Council Decision 86/365/EEC adopting the programme on cooperation between universities and enterprises regarding training in the field of technology (Comett) [1986] OJ L 222/17.
- 65.
OJ [1989] L13/28.
- 66.
Case 242/87 Commission of the European Communities v. Council of the European Communities. (Erasmus) [1989] ECR 1425.
- 67.
Council Decision 87/327/EEC adopting the European Community Action Scheme for the Mobility of University Students (Erasmus) [1987] L 166/20.
- 68.
Case 242/87 Commission of the European Communities v. Council of the European Communities. (Erasmus) [1989] ECR 1425.
- 69.
Ibid.
- 70.
Opinion of Advocate General Mischo delivered in Case 242/87 Commission of the European Communities v. Council of the European Communities. (Erasmus) [1989] ECR 1425.
- 71.
Ibid., para 32.
- 72.
Ibid., para 36.
- 73.
Ibid., para 37.
- 74.
Case 293/83 Gravier v. City of Liege [1985] ECR 593; Case 24/86 Blaizot [1988] ECR 37; Case 236/86 Humbel [1988] ECR 5365.
- 75.
Case 293/83 Gravier v. City of Liege [1985] ECR 593, para 17.
- 76.
Ibid., para 30.
- 77.
In Case 24/86 Blaizot [1988] ECR 37, para 20.
- 78.
Case 263/86 Belgian State v. René Humbel and Marie-Thérèse Edel [1988] ECR 5365.
- 79.
Case 242/87 Commission of the European Communities v. Council of the European Communities. (Erasmus) [1989] ECR 1425, para 27.
- 80.
Council Decision 89/489/EEC establishing an action programme to promote foreign language competence in the European Community (Lingua) [1989] OJ L 239/24.
- 81.
In veterinary sector-Directive 78/1027/EEC, concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of the activities of veterinary surgeons, in the field of pharmacy-Directive 85/432/EEC, concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of certain activities in the field of pharmacy, for nurses-Directive 77/453/EEC, concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of the activities of nurses responsible for general care, for midwives-Directive 80/155/EEC, concerning the coordination of provisions laid down by Law, Regulation or Administrative Action relating to the taking up and pursuit of the activities of midwives, for dentists-Directive 78/687/EEC concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of the activities of dental practitioners, for doctors-Council Directive 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors.
- 82.
The laws implementing the EEC Directive regarding dental practitioners had different requirements for the recognition of the same diploma in different Member States-see Zilioli 1989.
- 83.
See Zilioli C 1989.
- 84.
Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, [1989] OJ L 19/16.
- 85.
De Witte 1992, 81.
- 86.
Report to the European Parliament and the Council on the state of application of the general system for recognition of higher education diplomas, made in accordance with Article 13 of the Directive 89/48/EEC, COM(96) 46 final.
- 87.
Council Directive 92/49/EEC on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) [1992] OJ L228/1.
- 88.
Article 7 of the Council Directive 92/49/EEC on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) [1992] OJ L228/1.
- 89.
There are three types of voluntary health insurance: substitutive cover—private voluntary health insurance to cover medical expenses for persons excluded or exempted from statutory protection;complementary cover—private voluntary health insurance to cover out-pocket payments charged to patients for medical services and goods not or only partially covered under statutory protection;alternative or supplementary—private voluntary health insurance to cover health care services delivered by private health care providers outside the scope of the statutory protection.The classification is found in Palm 2003.
- 90.
Thomson and Mossialos 2004.
- 91.
Thomson and Mossialos 2004 stated that “If risk equalisation schemes and the provision of benefits in kind are found to contravene these rules, the implications could be significant, not just for regulation of private health insurance, but also for statutory arrangements, particularly in the light of recent proposals to increase privatisation of health care funding.”
- 92.
De Búrca and De Witte 2002.
- 93.
- 94.
- 95.
Regulation EEC/337/75 of the Council of 10 February 1975 establishing a European Centre for the Development of Vocational Training, [1975] OJ L39/1.
- 96.
Council Decision 88/348/EEC adopting an action programme for the promotion of youth exchanges in the Community-"Youth for Europe" programme, [1988] OJ L158/42.
- 97.
Council Directive 90/366/EEC on the right of residence for students, [1990] OJ L180/30.
- 98.
Council Decision 89/489/EEC establishing an action programme to promote foreign language competence in the European Community (Lingua), [1989] OJ L239/24.
- 99.
Council Decision 86/365/EEC adopting the programme on cooperation between universities and enterprises regarding training in the field of technology (Comett), [1986] OJ L222/17.
- 100.
Council Decision 87/327/EEC adopting the European Community Action Scheme for the Mobility of University Students (Erasmus), [1987] OJ L166/20.
- 101.
Case 9/74 Donato Casagrande v. Landeshauptstadt München [1974] ECR 773.
- 102.
Ibid., para 12.
- 103.
Hartley, as cited in Craig and De Búrca.
- 104.
Decision 819/95/EC of the European Parliament and of the Council establishing the Community action programme ‘Socrates’ [1995] OJ L87/10.
- 105.
Decision 253/2000/EC of the European Parliament and of the Council establishing the second phase of the Community action programme in the field of education ‘Socrates’, [2000] OJ 28/1.
- 106.
Schütze 2003, 333.
- 107.
Case 242/87 Commission of the European Communities v. Council of the European Communities. (Erasmus) [1989] ECR 1425.
- 108.
Even if Member States could oppose any piece of undesired legislation, still unanimity cannot be seen as a guarantee against the expansion of the Community powers. According to Weiler 1991, 23 “The general assumption that unanimity sufficiently guarantees the Member States against abusive expansion is patently erroneous. First, it is built on the false assumption that conflates the government of a state with the state. Constitutional guarantees are designed, in part, to defend against the political wishes of this or that government, which government after all, in a democratic society, is contingent in time and often of limited representativeness. Additionally, even where there is wall-to-wall political support, there will not necessarily be a recognition that constitutional guarantees are intended to protect, in part, individuals against majorities, even big ones. It is quite understandable why, for example, political powers might have a stake in expansion. One of the rationales, trite yet no less persuasive, of enumeration and divided powers is to anticipate that stake to prevent concentration of power in one body and at one level. When that body and that level operate in an environment of reduced public accountability (as is the case of the Commission and the Council in the Community environment) the importance of the constitutional guarantee even increases.”
- 109.
Case 242/87 Commission of the European Communities v. Council of the European Communities (Erasmus), [1989] ECR 1425, paras 30–32.
- 110.
Lonbay 1989, 365.
- 111.
Council Directive 90/239/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning the maximum tar yield of cigarettes, [1990] OJ L137/36; Council Directive 89/622/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labeling of tobacco products, [1989] OJ L359/1; Council Directive 92/41/EEC amending Directive 89/622/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labeling of tobacco products, [1992] OJ L158/30; Directive 98/43/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, [1998] OJ L47/23; Directive 2001/37/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products-Commission statement, [2001] OJ L194/26; Directive 2003/33/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (Text with EEA relevance) [2003] OJ L 152/16.
- 112.
- 113.
Case C-376/98 Federal Republic of Germany v. European Parliament and Council of the European Union [2000] ECR 8419; See also ‘Better competence monitoring’, (2005) 30 EL Rev. 23, 27; Dashwood, ‘The Relationship between the Member States and the European Union/European Community’ (2004) 41 CML Rev., 355 to Dashwood (2004).
- 114.
Directive 98/43/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products [1998] OJ L 213/9.
- 115.
Case C-376/98 Federal Republic of Germany v. European Parliament and Council of the European Union, [2000] ECR 8419, paras 77, 78.
- 116.
Ibid., para 84 “genuine improvement of internal market conditions” according to Crosby implies a positive contribution-a measure should be constructive in purpose and/or effect.
- 117.
Ibid., para 84.
- 118.
Crosby 2002, 177–193.
- 119.
Ibid., 3.
- 120.
See Opinion of Advocate General Fennelly delivered in Case C-376/98, Federal Republic of Germany v. European Parliament and Council of the European Union [2000] ECR 8419.
- 121.
Case C-376/98 Federal Republic of Germany v. European Parliament and Council of the European Union [2000] ECR 8419, para 69.
- 122.
Case C-377/98 Netherlands v. Parliament and Council [2001] ECR I-7079; Case C-491/01 British American Tobacco [2002] ECR I-11453; Joined Cases C-465/00, C-138/01 & C-139/01, Österreichischer Rundfunk [2003] ECR I-4989; Case C-101/01 Bodil Lindqvist, [2003] ECR I-12971; Case C-434/02 Arnold André [2004] ECR I-11825; Case C-210/03 Swedish Match [2004] ECR I-11893; Joined Cases C-154 & 155/04 Alliance for Natural Health [2005] ECR I-6451; Case C-66/04 United Kingdom v. Parliament and Council [2005] ECR I-10553; Case C-436/03, Parliament v. Council [2006] ECR I-3733; Case C-217/04 United Kingdom v. Parliament and Council [2006] ECR I-3771.
- 123.
Directive 2003/33/EC of the European Parliament and of the Council 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (Text with EEA relevance), [2003] OJ L152/16. The advertising of tobacco products is prohibited in: the print media (newspapers and other publications); information society services; radio broadcasting. It remains limited to publications intended exclusively for professionals in the tobacco trade and publications which are published and printed in third countries and are not principally intended for the Community market. Sponsorship of radio programmes or international events by companies with the aim of promoting tobacco products is prohibited. The free distribution of tobacco products as sponsorship of such events is also prohibited. However, the sponsorship of events or activities with no cross-border effect is not covered by this Directive.
- 124.
Preamble of Directive 2003/33/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (Text with EEA relevance), [2006] OJ L152/16, para 3.
- 125.
Case C-380/03 Federal Republic of Germany v. European Parliament and Council of the European Union [2006] ECR I-11573.
- 126.
Ibid., para 56.
- 127.
Ibid., para 57.
- 128.
Ibid., para 58.
- 129.
Ibid., para 61.
- 130.
Ibid., para 65.
- 131.
Ibid. paras 69–73.
- 132.
Ludwigs 2007, pp. 1159–1176.
- 133.
Case C-377/98 Kingdom of the Netherlands v. European Parliament and Council of the European Union [2001] ECR 7079.
- 134.
Ibid., para 28.
- 135.
Opinion of Advocate General Geelhoed delivered on 10 September 2002 in Case C-491/01 The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I-11453.
- 136.
Ibid., para 100.
- 137.
Ibid., para 114.
- 138.
Ibid., para 113.
- 139.
Opinion of Advocate General Geelhoed delivered in Case C-491/01 The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I-11453.
- 140.
Opinion of Advocate General Geelhoed delivered in Case C-491/01 The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I-11453, para 122.
- 141.
- 142.
Jaques Delors, October 1989, at the opening of the academic year of the College of Europe in Bruges, as cited by Santer (1991).
- 143.
Constantinesco considers that “L’article 3B a ainsi la function d’ un signal politique adresse aux opinions publiques nationals, hostiles a l’image d’en exces d’interventionnisme et redoutant l’apparition d’un centralisme communautaire” in Constantinesco et al. 1992.
- 144.
Toth 1992 .
- 145.
Article 130(r) SEA.
- 146.
The Laeken European Council, 14–15 December 2001.
- 147.
Kapteyn Pand Verloren van Themaat 1998, p.135.
- 148.
Ibid., 135–144.
- 149.
See Cass 1992, pp. 1107–1136.
- 150.
Toth 1994, p. 39.
- 151.
Case 22/70 Commission v. Council (ERTA Case) [1971] ECR 263 at 276.
- 152.
Steiner 1994, p. 57.
- 153.
In drawing the borders of the areas where Community has exercised its powers, according to Craig and De Búrca attention should be also paid to ECJ decisions. In Craig and De Búrca 2003, p. 135.
- 154.
Davies 2003, p. 689.
- 155.
Toth 1994, 41.
- 156.
Brinkhorst 1991.
- 157.
For this topic see Toth 1992, p. 1099.
- 158.
Protocol on the application of the principles of subsidiarity and proportionality 1997 Selected Instruments taken from the Treaties, book I, volume I, 1999 edition, published by the Office for Official Publications of the European Communities, ISBN 92-824-1661-5.
- 159.
See Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (Text with EEA relevance) [2003] OJ L 152/16, para 17.
- 160.
Article 5 EC repealed and replaced in substance by Article 13(2) TFEU.
- 161.
Regulation 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, 1971 OJ L 149 Consolidated version [1997] OJ L 28; modified by Regulation 883/2004/EC on the coordination of social security systems [2004] OJ L166/2 which is not in force yet. See also Van der Mei 2002, pp. 551–566; Dawes 2006, pp. 167–182.
- 162.
Regulation 1408/71 [1997] OJ L 28, Article 3(1).
- 163.
Ibid., Article 3(2).
- 164.
Ibid., Article 4.
- 165.
Ibid., Article 4(2)(a).
- 166.
Regulation 883/2004/EC on the coordination of social security systems [2004] OJ L166/2; amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009 amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of its Annexes [2009] OJ L 284/43.
- 167.
The Implementing rules have been adopted through Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems [2009] OJ L 284/1.
- 168.
Regulation 883/2004/EC on the coordination of social security systems [2004] OJ L166/2.
- 169.
Ibid., Article 20(2).
- 170.
For related conflicts between Regulation 1408/71 and primary law see Cabral 2004, pp. 673–686.
- 171.
Case C-56/01 Patricia Inizan v. Caisse primaire d'assurance maladie des Hauts-de-Seine [2003] ECR I-12403.
- 172.
Ibid., para 24.
- 173.
The training for a nurse could take between three and five years and for a doctor between 15 and 20. See Buchan 2007.
- 174.
Case 2/74 Reyners v. Belgium [1974] ECR 631; Case 71/76 Thieffry [1977] ECR 765; Case C-340/89 Vlassopoulou [1991] I-2357.
- 175.
Case C-340/89 Vlassopoulou [1991] I-2357, para 15.
- 176.
Council Directive 75/363/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors, [1975] OJ L167/14; The Directive was consolidated by Directive 93/16/EEC to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, [1993] OJ L 165/1; The Directive with regard to doctors is repealed and replaced by Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications, [2005] OJ L 255/22.
- 177.
Directive 78/686/EEC on the mutual recognition of diplomas, certificates and other evidence of formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, [1978] OJ L233/1; Directive 78/687/EEC concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of the activities of dental practitioners, [1978] OJ L233/10, amended by Directive 2001/19/EC. [2001] L206/1; repealed and replaced by Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications, [2005] OJ L 255/22.
- 178.
Directive 85/432/EEC, concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of certain activities in the field of pharmacy, [1985] OJ L253/34; Council Directive 85/433/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in pharmacy, including measures to facilitate the effective exercise of the right of establishment relating to certain activities in the field of pharmacy, [1985]] OJ 253/37, amended by Directive 2001/19/EC, [2001] OJ L 206/1; repealed and replaced by Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications, [2005] OJ L 255/22.
- 179.
Directive 77/452/EEC on the mutual recognition of diplomas, certificates and other evidence of formal qualifications of nurses responsible for general care, including measures to facilitate the effective exercise of this right of establishment and freedom to provide services, [1977] OJ L176/1; Directive 77/453/EEC, concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of the activities of nurses responsible for general care, [1977] OJ L176/8; amended by Directive 2001/19/EC. [2001] L206/1; repealed and replaced by Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications, [2005] OJ L 255/22.
- 180.
Directive 80/154/EEC on the mutual recognition of diplomas, certificates and other evidence of formal qualifications of practitioners of midwifery, [1980] OJ L33/1; Directive 80/155/EEC, concerning the coordination of provisions laid down by Law, Regulation or Administrative Action relating to the taking up and pursuit of the activities of midwives, [1980] OJ L33/8; amended by Directive 2001/19/EC. [2001] L206/1; repealed and replaced by Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications, [2005] OJ L 255/22.
- 181.
Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications, [2005] OJ L 255/22.
- 182.
Directive 93/16/EEC to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, [1993] OJ L 165/1, Article 2.
- 183.
Ibid., Article 4.
- 184.
Ibid., Article 10.
- 185.
Ibid., Article 11.
- 186.
Ibid., Article 17.
- 187.
Ibid., Article 23.
- 188.
Ibid. Article 24.
- 189.
See Hervey and McHale 2004, p. 206.
- 190.
Case C-202/99 Commission of the European Communities v. Italian Republic [2001] ECR I-9319.
- 191.
Council Directive 89/48/EEC on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, [1989] OJ L19/16, amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, [2001] OJ L 206/1; repealed by Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications, [2005] OJ L255/22.
- 192.
Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC, [1992] OJ L 209/25; amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, [2001] OJ L 206/1; repealed by Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications, [2005] OJ L255/22.
- 193.
Directive 1999/42/EC of the European Parliament and of the Council of 7 June 1999 establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications, [1999]OJ L 201/77; repealed by Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications, [2005] OJ L255/22.
- 194.
Report to the European Parliament and the Council on the State of Application of the General System for the Recognition of Higher Education Diplomas, [1996] COM(96) 46 final.
- 195.
Ibid.
- 196.
Pertek 1999, p. 293.
- 197.
Ibid.
- 198.
Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications [2005] OJ L255/22.
- 199.
- 200.
Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications [2005] OJ L255/22.
- 201.
Proposal for a Directive of the European Parliament and the Council on the recognition of professional qualifications, COM (2002) 119 final.
- 202.
See Hervey and McHale 2004, p. 198.
- 203.
Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications, [2005] OJ L255/22, Article 6.
- 204.
Ibid., Article 7.
- 205.
Ibid., Article 9.
- 206.
Ibid., Article 24.
- 207.
Ibid., Article 25.
- 208.
Ibid., Article 28.
- 209.
Ibid., Article 31.
- 210.
Ibid., Article 34.
- 211.
Ibid., Article 40.
- 212.
Ibid., Article 44.
- 213.
Hervey and McHale 2004, p. 220.
- 214.
Ibid., 223.
- 215.
Directive 93/16/EC, Article 12.
- 216.
Ibid., Article 11.
- 217.
Ibid., Article 12.
- 218.
Ibid., Article 11(3); Emphasis added.
- 219.
Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications [2005] OJ L255/22, Articles, 8, 56.
- 220.
Ibid., Article 8; Emphasis added.
- 221.
Report from the Commission to the Council and the European Parliament on the state of the internal market for services presented under the first stage of the Internal Market Strategy for Services, COM/2002/0,441 final.
- 222.
See An Internal market Strategy for Services, COM (2000) 888.
- 223.
Report from the Commission to the Council and the European Parliament on the state of the internal market for services presented under the first stage of the Internal Market Strategy for Services, COM/2002/0,441 final.
- 224.
- 225.
Barnard 2008, 323–394.
- 226.
- 227.
Barnard 2008, pp. 323–394.
- 228.
Ibid.
- 229.
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market [2006] OJ L376/36.
- 230.
Barnard 2008, p. 324.
- 231.
Ibid.
- 232.
Davies 2007a, pp. 232–245.
- 233.
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market [2006] OJ L376/36, Article 2; Emphasis added.
- 234.
Ibid., Article 1; Emphasis added.
- 235.
Barnard 2008, pp. 323–394.
- 236.
Handbook on the implementation of the Services Directive.
- 237.
Articles 1(2), 1(3).
- 238.
Weatherill 2007 .
- 239.
Davies 2007a, pp. 232–245.
- 240.
Barnard 2008,pp. 323–394.
- 241.
See Proposal for a Directive of the European Parliament and of the Council on the application of patients' rights in cross-border healthcare, COM(2008) 414 final, 2.
- 242.
The Member State of affiliation is the State where the person is insured.
- 243.
See European Hospital and Healthcare Employer’s Association, Patients’ Rights Directive Proposal: Further Clarity Needed, Press Release, 2 July 2008, at http://www.hospeem.eu/.
- 244.
Group of the Greens/European Free Alliance press release, Cross-border healthcare: Universal healthcare must come before mobility, 2 July 2008, at http://www.greens-efa.org/cms/pressreleases/dok/241/241086.crossborder_healthcare@en.htm.
- 245.
Green Paper on Services of General Interest, COM (2003) 270 final, para 37.
- 246.
Report to the Laeken European Council-Services of General Interest, COM (2001) 598 final.
- 247.
- 248.
Resolution PE 222.618/final, [1998] OJ C 14, para 5.
- 249.
- 250.
European Parliament resolution on the Commission communication “Services of General Interest in Europe,” [2001], OJ C 140E/153.
- 251.
European Parliament resolution on the Green Paper on services of general interest, [2004] OJ C 92E/294.
- 252.
Report to the Laeken Council, Services of General Interest, COM(2001) 598 final, paras 51–53.
- 253.
Green Paper on services of general interest, COM(2003) 270 final, paras 37–42.
- 254.
Ibid., para 38.
- 255.
Ibid., para 42.
- 256.
Commission Staff Working Paper, Report on the Public Consultation on the Green Paper on Services of General Interest, SEC(2004) 326, 12–13.
- 257.
Ibid., 9.
- 258.
White Paper on services of general interest, COM(2004) 324, 11.
- 259.
Ibid., 12.
- 260.
Draft European Framework to Guarantee and Develop Services of General Economic Interest, annex to the Resolution “Towards a framework directive on services of general (economic) interest,” 06-07/06/2006, at http://www.etuc.org/IMG/pdf/4-ETUC_framework_directive__annex_8aEC__EN_SC_RES.pdf.
- 261.
Ibid., Article 4.
- 262.
Ibid., Article 5(1).
- 263.
Ibid. Article 6.
- 264.
Comite Europeen de Liaison sue les Services d’interet general (European Liaison Committee on Services of General Interest).
- 265.
- 266.
Commission Staff Working Paper, Report on the Public Consultation on the Green Paper on Services of General Interest, SEC(2004) 326, 10.
- 267.
Ibid., 13.
- 268.
Communication from the Commission to the European Parliament, the Council, The European Economic and Social Committee and the Committee of the Regions-Accompanying the Communication on “A single market for Twentyfirst century Europe”-Services of general interest, including social services of general interest: a new European commitment COM (2007) 725 final.
- 269.
- 270.
De Búrca 2003, 814–839.
- 271.
Ibid., 816.
- 272.
COM(2001) 428 final, European Governance—A White Paper, 4.
- 273.
Trubek and Trubek 2005, 343–364.
- 274.
For an extensive study of soft law see Senden 2004.
- 275.
Scott and Trubek 2002.
- 276.
For further literature see Zeitlin and Pochet (eds) 2005; Dehousse (ed) 2004; Snyder (ed) 2003; De Búrca and Scott 2006a, b; Szyszczak 2006; De la Rosa 2005,p. 618; Trubek and Trubek 2005, p. 343; Maher 2004, p. 2; Hodson and Maher 2004, p. 798; De Búrca 2003, p. 814; Regent 2003, p. 190; Sbragia 2002; Dehousse 2002.
- 277.
Scharpf 2002, p. 645.
- 278.
See De Búrca 2003, p. 10.
- 279.
Ibid.
- 280.
Ibid., 12.
- 281.
- 282.
See Scott and Trubek 2002 .
- 283.
Ibid., 18.
- 284.
Chalmers and Lodge 2003.
- 285.
Ibid., 11.
- 286.
Ibid., 12.
- 287.
Ibid., 13.
- 288.
Trubek and Mosher 2003.
- 289.
Hatzopoulos 2007, pp. 309–342.
- 290.
- 291.
López-Santana 2006, p. 481.
- 292.
Hatzopoulos 2007, pp. 309–342.
- 293.
Chalmers and Lodge 2003, p. 19.
- 294.
Szyszczak 2006, p. 486.
- 295.
Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of Regions on the health strategy of the European Community, COM 2000 285 final.
- 296.
Conclusions of the Health Council, 26 June 2002.
- 297.
High Level Process of Reflection on Patient Mobility and Healthcare Developments in the European Union, HLPR/2003/16, 9 December 2003.
- 298.
Ibid., 4.
- 299.
Ibid., 10.
- 300.
Communication from the Commission-Follow-up to the high level reflection process on patient mobility and healthcare developments in the European Union, COM 2004 301 final.
- 301.
Regulation 1408/71, 1997 OJ L 28.
- 302.
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market [2006] OJ L376/36; It excludes healthcare services from its scope and the Commission came with a separate Proposal for a Directive of the European Parliament and of the Council on the application of patients' rights in cross-border healthcare, COM(2008) 414 final.
- 303.
Communication from the Commission-Follow-up to the high level reflection process on patient mobility and healthcare developments in the European Union, COM 2004 301 final, 3.
- 304.
Ibid., 6.
- 305.
Ibid., 10.
- 306.
Ibid., 12.
- 307.
Ibid.
- 308.
Council Regulation 322/97 of February 1997 on Community Statistics.
- 309.
Communication from the Commission-Follow-up to the high level reflection process on patient mobility and healthcare developments in the European Union, COM 2004 301 final, 13.
- 310.
Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, Modernising social protection for the development of high-quality, accessible and sustainable health care and long-term care: support for the national strategies using the “open method of coordination,” COM (2004) 304 final.
- 311.
High level process of reflection on Patient Mobility and Healthcare Developments in the European Union, HLPR/2003/16, 9 December 2003.
- 312.
Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, Modernising social protection for the development of high-quality, accessible and sustainable health care and long-term care: support for the national strategies using the “open method of coordination,” COM (2004) 304 final, 2.
- 313.
Decision No 1400/97/EC of the European Parliament and of the Council of 30 June 1997 adopting a programme of Community action on health monitoring within the framework for action in the field of public health (1997–2001) OJ L 193, 22.07.1997.
- 314.
Commissioner Byrne’s reflection Process “Enabling Good Health for all” Preparing the Ground for the Future Strategy Report in Responses Received, 15 July 2004, at http://ec.europa.eu/health/ph_overview/Documents/byrne_reflection_en.pdf.
- 315.
White Paper, Together for Health: A Strategic Approach for the EU 2008–2013, COM(2007)630 final.
- 316.
- 317.
Gornitzka 2006, at http://www.arena.uio.no.
- 318.
Detailed work programme on the follow-up of the objectives of Education and training systems in Europe [2002] C 142/01.
- 319.
Recommendation of the European Parliament and of the Council on the establishment of the European Qualifications Framework for lifelong learning [2008] C 111/01.
- 320.
It is a contact point for information on the academic recognition of diplomas and periods of study abroad.
- 321.
Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, Towards a European Research Area, COM(2000) 6 final.
- 322.
Gornitzka 2006, at http://www.arena.uio.no.
- 323.
Implementation of ‘Education and Training 2010’ Work Programme, July 2003.
- 324.
Gornitzka 2006, at http://www.arena.uio.no.
- 325.
Services of General Interest in Europe [1996] OJ C281/3, para 4.
- 326.
Ibid.
- 327.
Case T-289/03 British United Provident Association Ltd (BUPA) and Others v. Commission of the European Communities [2008] ECR II-00081, para 165.
- 328.
Ibid.
- 329.
Ross 2000, pp. 22–38.
- 330.
- 331.
Services of General Interest in Europe, [1996] OJ C281/3.
- 332.
Ibid., para 3.
- 333.
Charter of fundamental rights.
- 334.
Green Paper on Services of General Interest, COM(2003) 270 final.
- 335.
Ibid.
- 336.
Ross 2000, pp. 22–38.
- 337.
Favret 1997, p. 577.
- 338.
Ross M 2000, p. 32.
- 339.
Flynn 1999.
- 340.
Opinion of the Committee of the Regions on the Green Paper of services of general interest, 2004/C 73/02.
- 341.
Ibid., 9.
- 342.
Ibid.
- 343.
Sauter 1998.
- 344.
COM(2004) 374, 12.5.2004.
- 345.
Ibid., 16.
- 346.
Ibid., 17.
- 347.
Services of general interest in Europe, 1996, C281/03.
- 348.
See Report on the Public Consultation on the green Paper on Services of general Interest, SEC(2004) 326, 15.3.2004.
- 349.
OJ C 17, 19.1.2001, 4.
- 350.
COM (2001) 598, 17.10.2001.
- 351.
COM(2007) 724 final, 20.11.2007.
- 352.
COM (2006) 177, 26.4.2006.
- 353.
COM (2007) 725 final, 20.11.2007, 7.
- 354.
COM (2007) 725 final, 20.11.2007, 8.
- 355.
SEC (2006) 1195, 26.9.2006.
- 356.
COM (2007) 725 final, 20.11.2007, 9.
- 357.
Ibid., 11.
- 358.
Ross 2000, 22–38.
- 359.
Green Paper on Services of General Interest, COM (2003) 270 final, para 38.
- 360.
Conclusions of Working Group I on the Principle of Subsidiarity, Brussels, 23 September 2002, CONV 286/02 WGI 1.
- 361.
Peterson 1994, p. 132.
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Nistor, L. (2011). Positive and Soft Law. In: Public Services and the European Union. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-805-7_5
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